In Tuck v. Portfolio Recovery Assocs., No. 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274, at *9 (S.D. Cal. Oct. 16, 2019), Judge Bencivengo dismissed a TCPA and FDCPA claim for failure of proper pleading. First, she dismissed the TCPA claim.
To “make” a call under the TCPA the person must either (1) directly make the call, or (2) have an agency relationship with the person who made the call. See Gomez v. Campbell-Ewald, Co., 768 F.3d 871, 877-79 (9th Cir. 2014). An ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). Under 47 U.S.C. § 227(a)(1), an ATDS is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” An ATDS “need not actually store, produce, or, call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Satterfield, 569 F.3d at 951. Courts in this district have taken two approaches when facing a motion to dismiss on the grounds that the allegations of use of an ATDS are insufficient. See Maier v. J.C. Penney Corp., No. 13-CV-0163-IEG (DHB), 2013 WL 3006415 at *3 (S.D. Cal. June 13, 2013). Under the first approach, courts permit a plaintiff to make minimal allegations at the complaint stage, permitting discovery to proceed on the issue of ATDS, because the information is in the sole possession of the defendant. Id., citing In re Jiffy Lube Int’l Inc., Text Spam Litig., 847 F.Supp.2d 1253, 1260 (S.D. Cal. 2012). Under the second approach, factual allegations beyond mere statutory language are required which may lead to the inference that an ATDS was used. See Maier, 2013 WL 3006415 at *3. Plaintiff has failed to sufficiently allege that an ATDS was used or that there was a TCPA violation under either approach. Plaintiff’s complaint simply parrots the statutory definition of an ATDS and other provisions of the TCPA, but the Defendants would have no way of determining if they have any information in their possession with respect to such calls with Plaintiff’s conclusory and sweeping allegations. Plaintiff does not allege the phone number belonging to any of the credit bureau defendants was used to make the calls to him, the content of such calls, or any circumstances that could support an inference that the calls were placed with an ATDS or an artificial or prerecorded voice. Plaintiff’s conclusory allegations fall short of what is required for plausibility. Iqbal, 556 U.S. at 678. Accordingly, Plaintiff’s claims under the TCPA are DISMISSED with leave to amend for failure to state a claim.
Next, she dismissed the FDCPA/Rosenthal Act claims.
Plaintiff’s FDCPA and Rosenthal Act claims fail for several reasons. First, Plaintiff states all Defendants are debt collectors, but fails to allege any facts to support such a conclusion. A “debt collector” is “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Plaintiff fails to provide any factual basis from which the Court could plausibly infer that the Defendants’ principal purpose is the collection of debts or that either Defendant regularly collects or attempts to collect debts owed or due to another. Nor does Plaintiff provide facts to infer the alleged debt at issue was owed or due to another. Plaintiff also fails to set forth any factual allegations to suggest that any Defendant engaged in conduct prohibited by the FDCPA or Rosenthal Act beyond mere conclusory allegations repeating the provisions under each statute. Again, because Plaintiff fails to identify which Defendants made which calls or any factual content of such calls the Defendants in this case would be unable to defend themselves as to Plaintiff’s conclusory allegations. Defendants would be unable to determine whether or not calls were made at any unusual time or place, whether calls were made with the intent to annoy, abuse, or harass, or whether calls were made without meaningful disclosure of identity. Further, Plaintiff has not alleged any false, deceptive, or misleading representation was made by any of the Defendants in such calls. Lastly, Plaintiff’s allegations regarding the debt at issue are insufficient. A “debt” is defined as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). Proving the existence of a “debt” is a “threshold” issue in every FDCPA action. Turner v. Cook, 362 F.3d 1219, 1226-27 (9th Cir. 2004). Here, Plaintiff first states that “[t]he same consumer business debt[s] allegedly owed to all of the defendant’s [sic] herein arose out of a transaction that was primarily for personal, family, or household purposes.” [Doc. No. 1 at ¶ 71.] Then, Plaintiff states the “alleged debt is not [his] consumer debt” [Id. at ¶ 116], and “an alleged non-existent consumer debt he never owed.” [Id. at ¶ 138]. Plaintiff’s allegations are contradictory and provide no factual basis to infer that the debt at issue was indeed an obligation arising out of a transaction primarily for personal, family, or household purposes as required under the FDCPA and Rosenthal Act.